2013 (11) TMI 1322

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....ssioner of Income-tax (Appeals)-XV, Ahmadabad has erred in law and on facts in deleting the disallowances amounting to Rs.23,414/- u/s.43A(3) of the Act.    5). The Ld. Commissioner of Income-tax (Appeals)-XV, Ahmadabad has erred in law and on facts in deleting the disallowances amounting to Rs.73,333/- out of vehicle expenses.    6). The Ld. Commissioner of Income-tax (Appeals)-XV, Ahmadabad has erred in law and on facts in deleting the disallowances amounting to Rs.16,750/- out of telephone expenses." 2. The first ground of Revenue's appeal is against deleting the disallowance of Rs.3,00,000/- out of the labour expenses. The assessee is a contractor in construction. The asssessee is a joint venture between Kalathiya Engineering & Construction Ltd. and Radhe Construction. The joint venture agreement has carried out civil construction activities as contractor. During the previous year relevant to the assessment year, the assessee had undertaken job of construction of foundation of wind mill for Suzlon Infrastructure Ltd. in Kutch, District of Gujarat and Dhule-Nandurbar site in Maharashtra. The assessee had shown gross receipts of Rs.12.27 crore disclosing gr....

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....tion of the appellant that in the absence of any specific defect, without rejecting the books of account, disrespecting the audit in the case of appellant and only on the basis of an admission of appellant in earlier year, the lump sum disallowances of Rs. 3 lacs is based on conjecture and surmises. The A.O. failed to even shows that there is any abnormality of total labour expenditure vis-a-vis last year percentage or total turnover. Such kind of disallowances are not sustainable on facts and law. The A.O. is directed to delete such addition. The appellant gets relief of Rs.3,00,000/-." 4. Now the revenue is before us. Ld. Sr. D.R. vehemently relied upon the order of A.O. At the outset, ld. Counsel for the appellant filed a paper book alongwith comparative analysis of the expenses with A.Y. 06-07 and he also filed a copy of submission before the CIT(A), copy of annual account alongwith return, site wise bifurcation of income and expenses, illustrative vouchers of labour. It was contended that all the expenses were made on the basis of voucher received from the labour service provider. There was no defect in the books of account, has been pointed out by the A.O. He further relied ....

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..... 50,94,884/- VAT Tax payable A/c Rs. 3,45,483/- Total Rs. 57,03,319/-   From the above, it is seen that the liabilities on account of Service Tax was Rs.53,57,836/- as on 31.03.2007. Out of this, the appellant had paid service tax including interest of Rs.26,55,876/- and Rs.1,83,876/- on 17.07.2007 and 23.10.2007 respectively before the due date of return filed. The balance amount of Rs.25,53,939/- remained unpaid. The ld. A.O. gave reasonable opportunity of being heard on this issue, which was considered but he did not satisfy with the submission of the appellant. After discussing the various case laws and factual position, he made addition of Rs. 25,53,939/- as well as Rs.72,135/- u/s. 43B of the Act. 7. Being aggrieved by the order of the A.O., the assessee carried the matter before the CIT(A) who had allowed the appeal partly by observing as under:    "(C) I have perused the facts as mentioned by A.O. in the asstt. Order. I have perused the facts with details as submitted by appellant in statement of facts as well as in paper book. I have also perused the case law relied on by the appellant. After verification of facts as submitted by appellant and also ....

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....ch is made by A.O. on some miscalculation. Further since date of payment of challan for amount Rs. 2,93,429 is 29/10/2007 i.e. before the due date of filing of return of income in the case of appellant i.e. 31/10/2007, in spite of the same being paid on the date of filing of return of income, the same is allowable u/s 43B of the Act. The addition so made by A.O. is justified but upheld to the extent of Rs.52,054. The balance amount is directed to be deleted. The appellant gets relief of Rs.20,081 (72,135-52,054)." 8. Now the Revenue is before us. Ld. Sr. D.R. relied upon the order of the A.O. From the side of the assessee, ld. Counsel filed a copy of challan and copy of ledger account at page nos. 57 to 85 and copy of service tax letter dated 06th August, 2009 at page nos. 86, 87 to 89 of paper book and claimed that out of total outstanding service tax as on 31.03.2007 only Rs.41,643/- was remained unpaid as on 31.10.2007 on due date of return filed. He has also drawn our attention on page nos. 6 to 11 where details of payment of service tax as well as VAT have been given by the appellant. He further relied upon in case of ACIT v. Real Image Media Technologies (P) Ltd., [2008] 306....